FEDERAL COURT OF AUSTRALIA

Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69

ORDERS

IN EACH PROCEEDING THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1    The reasons of Charlesworth J have helpfully set out the relevant facts and other material necessary to provide an understanding of the issues that arise on these appeals. Consequently, I am able to succinctly express my reasons.

2    I respectfully agree with both Bromwich J and Charlesworth J that grounds 1 and 2 and the first limb of ground 3 are not established. Insofar as their Honours differ as to whether an objective or subjective assessment is required (see [37] below) I respectfully agree with Bromwich J. I agree with Charlesworth J that, on the second limb of ground 3, the Tribunal (in each case) asked the wrong question in applying s 116(1)(a) of the Migration Act 1958 (Cth) (“s 116(1)(a)”). As will be apparent, I agree with their Honours that the grant of relief would be futile and for that reason I agree that the appeals should be dismissed.

Did the Tribunal ask the wrong question?

3    As the Minister’s contentions correctly stated, s 116(1)(a) directs attention to two points in time: the date of the grant of the visa, and the date of the decision to cancel the visa. With that temporal frame, the decision-maker is required to determine whether “any circumstance which permitted the grant of the visa no longer exists”: s 116(1)(a). As a first step, that inquiry involves the decision-maker identifying the “circumstances” on which the grant of the visa was based. In other words, those circumstances which were material to the grant of the visa. The statutory task then requires the decision-maker to inquire whether, at the time of the decision to cancel the visa, any of those material circumstances no longer exist. That is the right question. If the answer to it is yes, the decision-maker’s power to cancel is enlivened and, subject to the proper exercise of the residual discretion, the visa may be cancelled.

4    In each of the cases at hand, the particular circumstances relevant to the Tribunal’s decision were those which went to the prescribed criteria for the grant of the visa which each of the appellants had held. They are set out in the definition of “eligible higher degree student” in cl 573.111 of Sch 2 of the Migration Regulations 1994 (Cth) (“the definition”) as follows:

eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

(a)    the applicant is enrolled in a principal course of study for the award of:

(ia)    an advanced diploma in the higher education sector; or

(i)    a bachelor’s degree; or

(ii)    a masters degree by coursework;

(b)    the principal course of study is provided by an eligible education provider;

(c)    if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

(i)    the applicant is also enrolled in that course; and

(ii)    that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

5    Each of the matters made applicable by that definition are factual. They are constituent facts of the designation “eligible higher degree student”. That designation serves the convenient function of gathering together and labelling the necessary components of a part of the regulatory criteria. Whilst each of the facts that constitute the definition is a “circumstance” within the meaning of s 116(1)(a), I do not accept that the state of satisfying the definition is a “circumstance”. If it were so that state of being an “eligible higher education student” was a “circumstance”, that state could be lost if the definition were altered. That would mean that a “circumstance” within the meaning of s 116(1)(a) would no longer exist simply because the definition was altered. Section 116(1)(a) is directed to facilitating the cancellation of a visa where there has been a material change to the basis upon which the visa was granted. It is not directed to facilitating a cancellation of a visa because the criteria for the grant of the visa have been altered. If s 116(1)(a) was directed to facilitating cancellations because of a change in policy, much clearer language would have been expected in relation to “[t]he exercise of this important power affecting the position of individuals and possibly their liberty”: Minister for Immigration and Multicultural Affairs v Zhang (1999) 84 FCR 258 at [54] (French and North JJ). A purposive approach to the construction of “circumstance” is, respectfully, consistent with the approach taken to construction by the Full Court in Zhang and is not in conflict with the conclusions there reached as to the meaning of “circumstance” in s 116(1)(a).

6    The relevant inquiry required by s 116(1)(a) must necessarily engage with the constituent facts which made up the definition at the time that the visa was granted and inquire whether one or more of the constituent facts that existed at the time that the visa was granted no longer exist at the time of decision. That then is the question that, in each case, the Tribunal should have asked. The contentions made by the Minister are consistent with that analysis. The Minister contended that the Tribunal did engage in the inquiry I have identified as the requisite inquiry. My point of departure from the submissions made by the Minister is that, to my mind, the reasons given by the Tribunal demonstrate that it impermissibly strayed from the inquiry that was required of it. The Tribunal inquired as to whether each of the appellants satisfied the definition at the time of decision. As a matter of substance that was a different inquiry to whether a circumstance material to the grant of the visa no longer exists. That is so because, as the Tribunal approached the task, the non-existence of a material circumstance was not regarded as determinative and instead what mattered was whether the appellant met the definition.

7    In the case of Mr Shrestha, the Tribunal’s reasons at [42] show the Tribunal did consider, by reference to the definition, the basis upon which Mr Shrestha’s visa had been granted. The Tribunal concluded that the grant of the visa was based upon, inter alia, Mr Shrestha’s enrolment in the Bachelor of IT course at Deakin University and enrolment in a Diploma of Computing course with an education business partner of Deakin. Those findings suggest that at that juncture the Tribunal was on the right inquiry, the next step of which was to determine whether those enrolments no longer existed at the time of decision. But rather than addressing that next step, it seems to me that thereafter (at [45]–[51]) the Tribunal addressed a different question, namely, whether at the time of decision Mr Shrestha satisfied the definition of an eligible higher degree student and, in particular, whether paragraph (c) of the definition was satisfied.

8    If the Tribunal had been answering the right question, all it relevantly needed to do was determine whether the enrolment of Mr Shrestha in the Diploma of Computing course no longer existed. Whilst the Tribunal made that finding, it did so for the purpose of answering a different and unnecessary question of whether paragraph (c) of the definition was satisfied at the time of decision. That the different question was the operative consideration is most apparent in the Tribunal’s deliberations at [46]–[49] where the Tribunal considers whether the cookery courses or the Diploma of Management course in which Mr Shrestha had subsequently enrolled satisfied paragraph (c) of the definition. Those considerations were entirely irrelevant and superfluous to the right inquiry and demonstrative of the wrong question being considered. My conclusion is fortified by what the Tribunal then said at [50] that:

Furthermore, the applicant did not provide any evidence to show that he currently meets the definition of an eligible higher degree student.

9    The reasoning of the Tribunal in Mr Ghimire’s case is not relevantly distinguishable. Paragraphs [20]–[24] of the Tribunal’s reasons are focused on whether cookery and other courses in which Mr Ghimire enrolled after the grant of his visa, enabled Mr Ghimire to satisfy paragraph (c) of the definition at the time of the decision. Again, those matters are entirely irrelevant to the inquiry which s 116(1)(a) required. That they were regarded as relevant is demonstrative of the fact that the wrong question was being considered. Paragraph [25] of the reasons in respect of Mr Ghimire is in the same terms as [50] of the reasons in respect of Mr Shrestha set out above.

10    In the case of Mr Acharya, the Tribunal’s reasoning was also focused upon whether Mr Acharya satisfied paragraph (c) of the definition at the time of the decision to cancel. Mr Acharya’s visa had been granted on the basis of his enrolment in a Bachelor of IT and Diploma of Computing course. As the Tribunal noted at [36], subsequent to the visa being issued, Mr Acharya changed his enrolments to a Bachelor of Commerce and Diploma of Commerce. The Tribunal was unconcerned by those changes and the fact that the enrolments upon which the visa was granted no longer existed. That was not because those changed circumstances were not regarded as material to the grant of the visa but because “[w]ith those enrolments, he satisfied the definition of ‘eligible higher degree student’”: at [36]. This is demonstrative of the Tribunal posing and answering the wrong question. The question that was posed, as the Tribunal itself stated at [39], was whether Mr Acharya “met the definition of an eligible higher degree student”. Again, what was thereafter stated at paragraphs [40] is in the same terms as [50] of the reasons of the Tribunal in relation to Mr Shrestha.

11    For those reasons I consider that, in each case, the Tribunal asked the wrong question in applying s 116(1)(a). That constituted jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ). In each case, the primary judge failed to identify that error. Had the primary judge done so, it would have been necessary for the judge to consider whether the discretionary remedy available on judicial review should have been granted. If a remedy should have been refused by the Federal Circuit Court, it must follow that a remedy should be here refused and that the only appropriate order is that the appeals be dismissed. I turn then to consider that question.

Relief

12    As Griffiths and Moshinsky JJ recently observed in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [96], where jurisdictional error is demonstrated, considerable caution must be exercised before a remedy is withheld on the ground of lack of utility. Their Honours cited with approval the following observation made in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Law Book Co, 2017) at [17.150] as follows:

There is in all of these instances a real danger in saying that the ultimate outcome is obvious. Unless the eventual outcome is crystal clear, a consideration of the likely outcome might shade into a consideration of the desirable outcome, which is something that must be left to the primary decision-maker.

13    In each case, it is crystal clear that on the unchallenged facts as found by the Tribunal, circumstances material to the grant of the visas, namely, enrolments in particular courses, no longer existed at the time of the decision to cancel those visas. If the Tribunal had asked the correct question, the inevitable result was that s 116(1)(a) was enlivened and the precondition necessary for cancellation of the visa existed.

14    However, the outcomes of each of the appellants’ applications before the Tribunal were also dependent upon the exercise of the Tribunal’s discretion. In each case, the Tribunal declined to exercise its discretion not to cancel the visa.

15    In Mr Shrestha’s case it did so because, in substance, it regarded Mr Shrestha as responsible for his own actions and did not regard Mr Shrestha’s dilemma as due to circumstances beyond his control. The Tribunal accepted that the cancellation of his visa would result in some hardship or prejudice but regarded that consideration as of not sufficient weight to warrant the exercise of the discretion favourably to Mr Shrestha. Although not expressly adverted to on the issue of discretion, it would be surprising if the Tribunal did not give significant weight to the fact that Mr Shrestha was not, at the time of cancellation, enrolled in courses of study of the kind required by the definition. For essentially the same reasons, the Tribunal declined to exercise its discretion in favour of Mr Ghimire and Mr Acharya.

16    The Minister contended that neither the factors considered by the Tribunal nor the case put to the Tribunal by each of the appellants in relation to the exercise of the Tribunal’s discretion permitted the possibility that, had the Tribunal asked what I have identified as the right question, the Tribunal’s discretion would have been exercised differently. I accept that submission. That the decision-maker has a discretion demands substantial caution before relief should be refused on the basis of futility. However, on the facts at hand and with the requisite degree of clarity, I am satisfied that no different outcome could have eventuated had the right question been posed and answered by the Tribunal in each of the cases at hand. Insofar as it may be necessary that a forward looking assessment must be taken as to the outcome of any reconsideration, I would come to the same view.

17    The submission made by the appellants that a different outcome was a possibility is misconceived. It is founded on the proposition that if the Tribunal had directed itself to the correct inquiry it may have come to a view that the grant of the visas was not based on enrolment in the diploma courses. I can see no tenable basis for that contention.

18    For those reasons, the appeals must be dismissed.

19    As the parties sought to be heard on the question of costs, I would order that the parties be directed to confer with a view to agreeing costs. If there is agreement, the parties should file minutes of a proposed order or, in the absence of agreement, the parties should file and exchange short submissions.

Associate:    

Dated:    27 April 2017

REASONS FOR JUDGMENT

BROMWICH J:

20    I agree with Charlesworth J that these three appeals should be dismissed and gratefully adopt what her Honour has written as to the factual matrix and her summary of the legislative provisions. I agree that grounds 1 and 2 should fail, albeit with a qualification to her Honour’s reasoning set out below. I also agree that the first part of ground 3 should fail for the reasons that her Honour has given. However, I respectfully do not agree that the second part of ground 3 has been made out. To that extent, I also respectfully disagree with Bromberg J.

21    As no jurisdictional error has been established on the part of the Tribunal in respect of any of the three appellants, the exercise of the residual discretion not to quash the three Tribunal decisions does not arise. However, for completeness, I also give reasons below as to why, if I was wrong as to the absence of jurisdictional error, I would have exercised that discretion in the same way as both Bromberg J and Charlesworth J.

22    My point of departure from Charlesworth J’s reasoning, and in part Bromberg J’s reasoning, comes down to a different approach and conclusion on two issues. The first issue is whether an objective visa criterion, or part of such a criterion, can be a “circumstance” for the purposes of s 116(1)(a) of the Migration Act 1958 (Cth). The second issue, involving only a qualification in approach, is whether the Tribunal in each case erred in concluding that this circumstance no longer existed, either at the time of each delegate’s decision or at the time of each of the three Tribunal decisions.

“Circumstance” in s 116(1)(a) of the Migration Act

23    The Tribunal treated the question of whether each of the appellants was an “eligible higher degree student” (EHDS) at the time of the grant of the visa as a “circumstance” within the meaning of s 116(1)(a) of the Migration Act as then applied, which would trigger the cancellation power if that circumstance no longer existed at the time of the Tribunal’s decision. For the reasons that follow, the Tribunal did not err in this approach, and the second part of ground 3 must fail.

24    In Minister for Immigration and Multicultural Affairs v Zhang (1999) 84 FCR 258, the Full Court dismissed an appeal from a decision of a single judge of this Court to quash the cancellation of a Class 456 Business Visa. The cancellation decision was made under s 116(1)(a), which was in substantially the same terms as applied in these three appeals. The only relevant visa criterion, set out in Zhang at 266-7 [37], was cl 456.221(2)(b) of the Migration Regulations 1994 (Cth), which provided as follows:

… the applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine …

25    The visa cancellation decision was based on a finding by a delegate of the Minister that the intention previously expressed by Mr Zhang only to visit Australia at the time of applying for the visa was not and had never been genuine. The Minister submitted that the trigger for the power to cancel the visa was that a circumstance that permitted the grant of the visa, being the state of satisfaction of the Minister or his delegate as to Mr Zhang’s intention, was a circumstance that no longer existed. It is convenient to reproduce the entirety of what was said by the plurality (French and North JJ) on this topic because it is clear, concise and determinative of this issue in these appeals. Their Honours held as follows (emphasis added to [54]):

Change in circumstances

48    The primary question in the appeal is the application and construction of the condition for the exercise of the cancellation power in s 116 which requires that: “the Minister ... is satisfied that ... any circumstances which permitted the grant of the visa no longer exist.”

49    The Minister submitted that the learned primary judge failed to take into account one of the circumstances relevant to the grant of a business visa. That circumstance was said to be the state of satisfaction of the Minister or his delegate that the expressed intention of the applicant only to visit Australia is genuine (reg 456.221(2)(b)). If at any stage that state of satisfaction abates or a Minister or his delegate forms the view that the visit is no longer genuine then the belief in its genuineness is a circumstance that no longer exists.

50    Counsel for Zhang pointed out that ministerial satisfaction is a condition governing all criteria for the grant of any class of visa under s 65. If the state of ministerial satisfaction were a “circumstance” for the purpose of s 116(1)(a) then that section would confer a general power to reconsider the grant of visas.

51    The relevant ordinary meanings of the word “circumstance” are as follows (Shorter Oxford English Dictionary):

“1.    That which stands around or surrounds; surroundings;

2.    pl. The adjuncts of an action or fact; in sing any one of these ME.

3.    The state of (esp pecuniary) affairs surrounding and affecting an agent ME (Mere situation is expressed by ‘in the circumstances’, action takes place ‘under the circumstances’).”

and (Macquarie Dictionary):

“1.    a condition, with respect to time, place, manner, agent, etc., which accompanies, determines or modifies a fact or event.

2.    (usu. pl.) the existing condition or state of affairs surrounding and affecting an agent: forced by circumstances to do a thing . .

5.    an incident or occurrence …”

52    A circumstance it may be said is a fact and “the state of a man’s mind … as much a fact as the state of his digestion” – Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483 (Bowen LJ).

53    That is not to say that every “fact” is a circumstance, nor that a state of mind is a circumstance. Context, on occasion, may permit the inclusion of a state of mind in a statutory classification of “circumstance” but such a usage is not in accordance with ordinary concepts of circumstance. In Wigmore, Principles of Judicial Proof (3rd ed, 1940), p 96, one of the modes of proof of a state of mind is by reference to “external circumstances” defined as “events or things” which may go to show knowledge, belief or consciousness of something.

54    The ministerial satisfaction which grounds the power to cancel a visa under s 116(1)(a) is satisfaction about the non-existence of “any circumstance which permitted the grant of visa”. The circumstance is the subject of the ministerial reflection. It does not as a matter of ordinary construction extend to his own state of mind. The exercise of this important power affecting the position of individuals and possibly their liberty is not to depend upon ministerial satisfaction about ministerial satisfaction. The relevant circumstance which permitted the grant of the visa under reg 456.221(1)(b) is that the expressed intention of Zhang only to visit Australia was genuine. If it were the case that the expressed intention was never genuine, that was a circumstance unchanged by the mere passage of time or the fact of a stated disbelief in the minds of the Minister or the objective discovery of its falsity.

55    The basis therefore, upon which the Minister’s delegate purported to cancel the visa was not made out. Assuming the falsity of the statements made in obtaining the visa in the first place, they remained false. The condition necessary for the invocation of s 116(1)(a) was not satisfied. There was no demonstrated circumstance permitting the grant of the visa which no longer existed.

56    Section 116(1)(a) therefore provided no basis for the cancellation of the visa.

26    The bold text in [54] above makes it clear that, in identifying the relevant “circumstance” permitting the grant of the relevant visa, the plurality in Zhang excluded from the visa criterion in cl 456.221(2)(b) the element of Ministerial satisfaction required by the expression “the applicant satisfies the Minister that …”, leaving, as the correct relevant circumstance for the purposes of s 116(1)(a) in that case, the objective balance of that criterion, being “the expressed intention of the applicant only to visit Australia is genuine”.

27    Although expressed differently, the third appeal judge, Merkel J, relevantly reached the same conclusion on this issue when his Honour said the following at 271-2 [67] and 273 [74] (emphasis added):

67    Section 116(1), as with s 65(1), conditions a decision to cancel a visa under the subsection on the Minister’s satisfaction about the matters set out in s 116(1). Section 116(1)(a) is concerned with a change in any circumstance which “permitted the grant of the visa”. Such circumstances will, at least, include the matters in respect of which the Minister was required to be satisfied before granting the visa.

…

74    In my view the subsection is concerned with a material change in the circumstances, other than the Minister’s satisfaction, which led the Minister to be satisfied that the criteria necessary for the grant of the relevant visa were met. Without endeavouring to be exhaustive of those circumstances they will include any matter, other than the ministerial satisfaction, in respect of which the Minister is required to be satisfied under either the Act or the Regulations prior to granting a visa.

28    Zhang, while not going so far as necessarily requiring a circumstance for the purposes of s 116(1)(a) to be any part of a visa criterion, clearly permits that approach. If that is the correct way to read Zhang, such an approach was permitted in each of these cases, with it being up to the Minister (via a delegate) or the Tribunal to decide how to frame the circumstance that might no longer exist. Unless Zhang should not for some compelling reason be followed (a formulation to be preferred to the phrase “plainly wrong”), it is binding authority to the effect that a “circumstance” for the purposes of s 116(1)(a) at least can be an objective visa criterion, or part of an objective visa criterion. There is no reason not to follow Zhang.

29    In applying Zhang, a further important point needs to be made. The express focus of s 116(1)(a) is on any circumstance which permitted the grant of the visa ceasing to exist. That commands attention to the circumstances that existed at the time the visa was granted, and what has changed since. What must change, by no longer existing, is a circumstance of the visa holder on which the grant of the visa was based.

30    Just as any change in the state of satisfaction of the Minister is irrelevant, so too is any subsequent change in a visa criterion, or part of a visa criterion, that existed at the time of the visa grant, including by way of changing a definition, which is no more than legislative shorthand to change each part of a criterion to which the definition applies. A shift in the goalposts in that way would require clear and specific legislation, noting that visa criteria usually only change prospectively, and are usually preserved in transitional provisions. This is not just a matter of accrued rights, but of strictly construing legislation from which is derived and exercised an “important power affecting the position of individuals and possibly their liberty”: Zhang at [54].

31    In these cases, the Tribunal’s focus needed to be, and was, on the basis upon which each appellant met the criterion of being an EHDS at the time of each visa grant, and the fact that they no longer met that basis at the time of considering cancellation, both before each delegate and before the Tribunal. This was not a matter of meeting an abstract definition. It was a question of whether a circumstance no longer existed of meeting a visa criterion that had applied and continued to apply to each appellant.

32    The case for the appellants was misconceived to the extent that it focused on the EHDS definition in the abstract, viewing it as though the grant of the visa was being considered afresh in order to determine whether the power to cancel had been enlivened. The correct approach, adopted by the Tribunal, was to consider how each of the appellants met the criterion of being an EHDS at the time of the grant of each visa; and how each no longer met that criterion, either by way of diploma enrolment at the time of each delegate’s decision, or at all by the time of each Tribunal decision. The visa criterion did not change. A relevant circumstance of each appellant did change, such that they no longer met the visa criterion that existed at the time of the grant of each visa.

33    It follows that there was no error on the part of the Tribunal in treating the objective factual finding that each of the appellants was an EHDS at the time of the grant of the visa as a circumstance that no longer existed at the time of the Tribunal’s decision, thereby triggering the cancellation power in s 116(1)(a). Correspondingly, there was no error on the part of the primary judge. The second part of ground 3 must fail.

Did the circumstance of being an EHDS no longer exist?

34    The second issue is whether the Tribunal’s reasons in each case disclose a jurisdictional error in finding that the circumstance of each appellant being an EHDS no longer existed. On this topic, being the substance of grounds 1 and 2, the difference between Charlesworth J’s reasons and what follows is subtle.

35    Each decision of the Tribunal contains a factual finding that the appellant was an EHDS at the time of the grant of the visa, and was no longer an EHDS by the time of the delegate’s decision. Each appellant could never be an EHDS at the time of the grant of the visa by way of enrolment in only the degree course, because none of them enrolled in a degree course on a standalone basis. Rather, each enrolled in a diploma course not just before and for the purposes of a degree course, but as a prerequisite for enrolment in the degree course.

36    Even though each appellant was still enrolled in the degree course at the time of the delegate’s decision, each was required to be enrolled in the prerequisite diploma course before and for the purposes of the degree course and in order to continue to be enrolled in that degree course. Indeed it was plain that each appellant wanted, and to that extent “proposed”, to be enrolled in such a diploma course, despite each having failed such a diploma course. There is little reason to doubt that each appellant fully appreciated that such enrolment was required to maintain the degree enrolment. Unless such a diploma was obtained, each appellant could not progress to study in the degree course. By the time of each Tribunal decision, the requirement of the diploma enrolment had apparently crystallised, and the enrolment in the degree course had been cancelled by the eligible education provider in each case.

37    The appellants argued, and Charlesworth J accepts, that the subjective state of mind of the appellants to undertake the diploma study was required. With respect, I disagree. I consider that what is required is no more than an objective assessment of what each appellant proposed to do based on the evidence and other material that was before the delegate and the Tribunal. At the visa grant stage that will ordinarily be ascertained from the fact of enrolment and any other aspects of that enrolment, such as the package arrangements in each of these cases. At the cancellation consideration stage, it will turn on an examination of the facts and circumstances then prevailing. However nothing turns on this distinction in these cases. That is because, as Charlesworth J has found, and I agree, the continuing proposal to undertake another course of study before and for the purposes the principal degree course of study, whether objective or subjective, was apparent, or can readily be inferred, from what was before the Tribunal as set out in each of the reasons.

38    The Tribunal’s reasons in each case, read beneficially if needed (Minister for Immigration And Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2), lead unerring to the conclusion that the facts and circumstances for each appellant required enrolment in both the diploma and degree course to remain an EHDS at the time of the visa cancellation decision. To do otherwise is to read the EHDS definition in the abstract and not, as required, consider whether or not each appellant in fact continued to be an EHDS in each of their individual circumstances.

39    Strictly speaking, the above concluded view on the correctness of each delegate’s decision, and of each Tribunal decision in relation to the position at the time of each delegate’s decision, is not necessary. That is because, by the relevant time of the Tribunal decision, none of the appellants was enrolled in either the prerequisite diploma course or the degree course. Each Tribunal decision contains a factual finding to that effect and to the effect that each appellant was therefore not, at the time of the Tribunal’s decision, an EHDS. That was the only available conclusion. The cancellation power was therefore properly engaged without any jurisdictional error being present. There was no error in the exercise of the cancellation power and no error on the part of the primary judge.

40    Grounds 1 and 2 must therefore fail.

Discretion

41    The relief sought by the appellants is discretionary. Assuming that I am wrong about the absence of jurisdictional error, a question arises as to whether it would lack utility or be futile to grant each of the appellants the relief they were seeking. A court will not grant a writ unless satisfied it will be effectual: R v Army Council; Ex parte Ravenscroft [1917] 2 KB 504 at 511.5. It may not be granted if, inter alia, no useful result could ensue: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400, cited with approval and quoted in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 108 [56].

42    The discretion to withhold relief may be more limited when the jurisdictional error involves a denial of procedural fairness, in part because of the difficulty in excluding a real possibility of a different outcome once the denial has been addressed: see Aala at 109 [59] and at 116-7 [80], citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147. Even in cases of a finding of a denial of procedural fairness, the residual discretion to withhold relief may be exercised in appropriate cases: see NAUV v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 124; (2004) 82 ALD 784 at 785-6 [38], [41]-[45] (special leave to appeal refused: NAUV v MIMIA [2005] HCATrans 96); but cf SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 322-4 [79]-[84].

43    But these are not cases involving any denial of procedural fairness. Rather, each turned on objective circumstances and, in particular, a critical visa criterion that could not be met by any of the appellants. This, unavoidably and properly, was the dominant consideration in making the cancellation decision in each of these cases.

44    The answer to the question of whether relief should be refused, if jurisdictional error is established in each of these cases, requires a prediction of how the cancellation discretion would have been exercised if the correct pathway to finding the power to cancel had been adopted. The exercise of the discretion could, in abstract theory, have been exercised not to cancel any of the three visas. However, that abstract possibility as to the existence of power divorced from the circumstances in which it was and would be required to be exercised in all three cases is not appropriate. To do so would be to include theoretical decision-making divorced from reality merely because that different outcome was legally possible. Such an approach would exclude many cases of lack of utility or futility as a ground for refusing relief on discretionary grounds. Utility and futility are not just abstract legal concepts; they have an important practical dimension.

45    In a case such as this, the Court is required to make a realistic assessment as to whether there was any reasonable and proper basis for the discretion to cancel to be exercised differently, with close attention to be paid to how it was exercised by the Tribunal previously in order to envisage how a different outcome of non-cancellation might be arrived at. Full Court authority suggests that the necessary predictive exercise may go so far as to require a conclusion to be reached that the likelihood of the discretion being exercised not to cancel is so clearly absent as to be “crystal clear”: see Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 per Griffiths and Moshinsky JJ at [95]-[100], especially the quote at [95] from Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, Sixth Edition, Lawbook Co at 1033 [17.150] as follows:

There is in all of these instances a real danger in saying that the ultimate outcome is obvious. Unless the eventual outcome is crystal clear, a consideration of a likely outcome might shade into a consideration of the desirable outcome, which is something that might be left to the primary decision-maker.

46    Necessarily, the above statement of principle cannot confine the discretion to cases in which the relief sought on remittal cannot, as a matter of law, be granted. The language of absolute certainty is appropriately absent. Nonetheless, Gill suggests that a very clear adverse prediction is required. Whether the statement in Gill is a principle of universal application, or, as I would prefer to view it, a useful guide, there is no difficulty in applying the suggested test to these three appeals.

47    While the cancellation power in s 116(1)(a) was not in terms predicated upon failure to meet a visa criterion and instead applied to any circumstance which permitted the grant of the visa and which no longer existed, that encompasses a potentially wide set of circumstances. Some changed circumstances will undoubtedly be weightier than others, even if they refer to a part of a visa criterion. Some visa criteria are no more than relevant considerations to take into account in forming a required subjective view. But in each of these cases, by the time that the Tribunal decision came to be made there was a complete failure to meet the central and indispensable criterion of being an EHDS. That was the dominant consideration for all each decision that the visa should be cancelled. Any other approach would have been surprising. All other considerations taken into account, essentially of hardship, were found not to outweigh that reason for cancellation. There was no evidence of anything that could possibly have affected each appellant’s non-EHDS status.

48    Each of the three Tribunal decisions dealt with the exercise of the cancellation discretion clearly and succinctly. There is nothing by way of evidence to suggest that any of those circumstances could have been relevantly different in any way at the time of the Tribunal decision had the correct pathway been followed (upon the basis that my conclusion that the correct pathway was in fact followed was incorrect). In circumstances where there was no enrolment by any of the appellants of the kind required for the grant of the visa, it is fanciful to suggest cancellation in each case was other than inevitable. It is “crystal clear” that is what would have occurred. That prediction involves no usurping of the Tribunal’s function, but rather an examination of how the power was exercised at the time and a lack of any sound basis for supposing it might be exercised differently on remittal.

Conclusion

49    All three appeals should be dismissed with costs.

Associate:

Dated:    27 April 2017

REASONS FOR JUDGMENT

CHARLESWORTH J:

50    These appeals raise common issues concerning the criteria for the grant and cancellation of a higher education student visa under the Migration Act 1958 (Cth) (Act) and the Migration Regulations 1994 (Cth) (Regulations).

51    The three appellants are citizens of Nepal. They each entered Australia holding a Student (Class TU) Higher Education Sector (subclass 573) visa (visa). A delegate of the first respondent (Minister) cancelled the appellants’ visas on substantively the same grounds. Each of the cancellation decisions was affirmed by the then-named Migration Review Tribunal (Tribunal) constituted of the same member, again substantively on the same grounds.

52    The appellants made applications for judicial review of the Tribunal’s decisions to the Federal Circuit Court of Australia (FCC). Each application for judicial review was dismissed: Shrestha v Minister for Immigration and Anor [2016] FCCA 828 (Judge Driver), Ghimire v Minister for Immigration and Anor [2016] FCCA 1440 (Judge Riethmuller) and Acharya v Minister for Immigration and Anor [2016] FCCA 1240 (Judge McGuire). The appellants appealed from the respective judgments. Their appeals were heard concurrently.

53    The grounds of appeal are set out at [85] below.

54    For the reasons given below, each of the appeals should be dismissed.

visa criteria

55    The Minister may grant a visa to a person only if he or she is satisfied that the criteria for the grant of the visa are met: s 65 of the Act. The criteria for the grant of a Higher Education Sector (subclass 573) visa include those prescribed in cl 573 of Sch 2 to the Regulations. These appeals concern the criteria in cl 573.223. Among other things, the Minister must be satisfied that the visa applicant meets the requirements of either cl 573.223(1A) or cl 573.223(2): see cl 573.223(1)(d). Subclause 573.223(1A) provides:

(1A)    If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

(a)    the applicant gives the Minister evidence that the applicant has:

(i)    a level of English language proficiency that satisfies the applicant’s eligible education provider; and

(ii)    educational qualifications required by the eligible education provider; and

(b)    the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(i)    the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii)    any other relevant matter; and

(c)    the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

(i)    the costs and expenses required to support the applicant during the proposed stay in Australia; and

(ii)    the costs and expenses required to support each member (if any) of the applicant’s family unit.

56    The alternative criteria in cl 573.223(2) are more stringent than those provided for in cl 573.223(1A), including on such matters as English language proficiency and financial capacity. In order for the less stringent criteria in cl 573.223(1A) to apply, the Minister must be satisfied that, again among other things, the visa applicant is an “eligible higher degree student”. That phrase is defined in cl 573.111 as follows:

eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

(a)    the applicant is enrolled in a principal course of study for the award of:

(ia)    an advanced diploma in the higher education sector; or

(i)    a bachelor’s degree; or

(ii)    a masters degree by coursework;

(b)    the principal course of study is provided by an eligible education provider;

(c)    if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study;

(i)    the applicant is also enrolled in that course; and

(ii)    that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

57    I will refer to that as “the EHDS definition”.

58    The qualifying words to paragraph (c) of the EHDS definition assume some importance in the appellants’ submissions. As can be seen, the condition in that paragraph need only be met if the visa applicant in fact proposes to undertake another course of study “before, and for the purposes of, the principal course of study”. If the visa applicant does not so propose, he or she will nonetheless satisfy the EHDS definition provided that the requirements of paragraphs (a) and (b) are met.

The grant and cancellation of the appellants’ visas

Grant

59    When the appellants obtained their visas, they were each enrolled in a course of study for the award of a Bachelor’s Degree with an eligible education provider. By those enrolments, each appellant satisfied paragraphs (a) and (b) of the EHDS definition. At that time, as will be seen, each appellant proposed to undertake a course of study for the award of a Diploma “before and for the purposes of” their respective Bachelor Degree courses. Paragraph (c) of the EHDS definition therefore applied to them. They each satisfied that part of the definition by holding enrolments in their respective Diploma courses. For the purposes of cl 573.223(1A), each of the appellants held a confirmation of enrolment in the two courses of study “for which” they were eligible higher degree students. By meeting the criteria in cl 573.223(1A) the appellants were not required to fulfil the more stringent criteria in cl 573.223(2).

60    It should be noted that after arriving in Australia, the appellant Mr Acharya changed his enrolment to a different Bachelor Degree and a different Diploma. The new enrolment in the different Bachelor Degree course satisfied paragraphs (a) and (b) of the EHDS definition and the new enrolment in the Diploma course satisfied paragraph (c) of the definition.

61    The appellants were not successful students. After the end of the first semester of their studies, each of them had ceased to be enrolled in their Diploma courses. They nonetheless remained enrolled (and maintained confirmation of enrolment in) their respective Bachelor Degree courses for some time afterward.

Cancellation

62    The Minister cancelled the appellants’ visas in the exercise of the power conferred by s 116(1)(a) of the Act as then in force.

63    At the time of the cancellation decision, s 116(1)(a) of the Act provided:

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)    any circumstance which permitted the grant of the visa no longer exists.

64    Subdivision E of Div 3 of Pt 3 of the Act sets out the procedures to be followed by the Minister when cancelling a visa under Subdiv D (of which s 116 forms a part). If the Minister is considering cancelling a visa under s 116, the Minister must notify the visa holder that there appear to be grounds for cancelling it and give particulars of the grounds and the information because of which the grounds for cancellation appear to exist: s 119(1)(a). The Minister must invite the visa holder to show that the asserted grounds do not exist or that there is a reason why the visa should not be cancelled: s 119(1)(b).

65    On 5 September 2014, each of the appellants received a Notice of Intention to Consider Cancellation (NOICC) issued under s 119 of the Act. Each NOICC stated that there appeared to be a ground for cancellation of the visa under s 116(1)(a) of the Act. Under the heading “Particulars of grounds for cancellation” there then appears the following statement:

It appears that the circumstance which permitted the grant of the visa no longer exist. The circumstance which permitted the grant of the visa was that you were an eligible higher degree student as defined by 573.111 of the Migration Regulations 1994 and satisfied the primary criteria set out in subclause 573.223(1A) of Schedule 2 of the Regulations. It appears that you are no longer an eligible higher degree student, and that therefore, a circumstance which permitted the grant of the visa no longer exists.

66    The Minister, by his delegate, subsequently cancelled each of the appellants’ visas on the ground foreshadowed in each NOICC. The reasons given for the cancellation of Mr Shrestha’s visa state:

Information available in the Provider Registration and International Student Management System (PRISMS) indicates that whilst the visa holder is enrolled in a principal course of study for the award of a bachelor’s degree or a master’s degree by coursework that is provided by an eligible education provider, the visa holder is not enrolled in another course of study before and for the purposes of the principal course of study.

As such, it appears the visa holder is no longer an eligible higher degree student and the circumstance that enabled the visa holder to satisfy subclause 573.223(1A) permitting the grant of the visa no longer exists.

If this is the case, then the visa may be cancelled under s 116(l)(a) - any circumstance which permitted the grant of the visa no longer exists.

Based on the information before me, I am satisfied that there is a ground for cancellation of CHETAN SHRESTHA’s visa under paragraph(s) s 116(l)(a) circumstances no longer exist of the Act.

67    The reasons for cancellation provided to Mr Ghimire and Mr Acharya contained statements in relevantly the same terms.

68    At the time of the cancellation decisions, the three appellants remained enrolled in the Bachelor Degree courses and so satisfied paragraphs (a) and (b) of the EHDS definition.

proceedings in The Tribunal

69    The applications for review were heard and determined separately by the Tribunal constituted of the same member. By the time of the Tribunal hearings, the appellants’ enrolments in their respective Bachelor Degree courses had been cancelled and they were not enrolled in any other courses that would satisfy paragraphs (a) and (b) of the EHDS definition.

70    The appellants in each case were represented by the same migration agent. They relied on written and oral submissions before the Tribunal. The migration agent’s submissions wrongly proceeded on the basis that the appellants’ visas had been cancelled in the exercise of the power conferred by s 116(1)(b) of the Act, rather than s 116(1)(a). Section 116(1)(b) empowers the Minister to cancel a visa if its holder has not complied with a condition of the visa. One such condition is that the visa holder continues to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa: see condition 8516 in Sch 8 of the Regulations.

71    It is perhaps not surprising that the migration agent sought to focus the Tribunal’s attention on the question of whether each appellant continued to satisfy the criteria for the grant of the visa at the time of the cancellation decision. The NOICC issued to each appellant had, in giving particulars that a ground for cancellation of each visa appeared to exist, specifically referred to the visa holders’ fulfilment of the criteria in cl 573.223(1A) as being the “circumstance that permitted the grant of the visa” that “no longer existed”. The delegate’s decision had also described the changed circumstance at that broader level of generality. The migration agent’s focus on the power under s 116(1)(b) of the Act was, however, clearly misconceived. The Minister had not purported to exercise that power.

The tribunal’s reasons

72    I will refer to the Tribunal’s reasons as expressed in the case of Mr Shrestha (Reasons). Counsel for all parties to these appeals acknowledged that the reasoning and conclusions of the Tribunal are similarly expressed in the cases of Mr Acharya and Mr Ghimire, and that the outcome of the appeal in relation to any one appellant should not differ from the outcome in respect of the others.

73    After the some introductory remarks, the Tribunal summarised the effect of the decision under review. It derived information from that decision and from Mr Shrestha’s own submissions upon which it later relied (Reasons [4], [11]). Among other things, the Tribunal found that Mr Shrestha could not have maintained an enrolment in his Bachelor Degree course without first undertaking the Diploma course. The courses were a “part of a package” (Reasons [4]). Furthermore, Mr Shrestha did not in any event have adequate English skills to enter university at the time of the visa grant. He undertook an English language course before commencing his studies in the Diploma course.

74    The Tribunal then proceeded to consider Mr Shrestha’s claims. It identified (correctly) that its first task was to identify whether a ground to cancel Mr Shrestha’s visa existed. It continued (Reasons [39]):

If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances …

75    The Reasons then proceeded under two headings. Under the heading “Does the ground for cancellation exist?” the Tribunal said:

42.    The applicant’s Subclass 573 visa was granted on the basis of his enrolment in a Bachelor of IT with an eligible education provider (Deakin) and a Diploma of Computing with an educational business partner of that provider (MIBT). With these enrolments, the applicant satisfied the definition of an ‘eligible higher degree student’ in cl.573.111 of the Regulations.

…

44.    A submission from the applicant’s agent on 11 February 2015 states that, when the visa was cancelled on 22 October 2014, the applicant was still enrolled in the Bachelor of IT at Deakin. She acknowledges that the COE is now cancelled.

45.    As stated in the primary decision, at the time of that decision, PRISMS indicated that the applicant was still enrolled in a principal course of study for a bachelor’s degree (the Bachelor of IT at Deakin) that is provided by an eligible education provider, but he was not enrolled in another course of study before and for the purposes of the principal course of study and provided by an education business partner of Deakin.

46.    The Diploma of Computing at MIBT (an education business partner of Deakin) was a course of study before and for the purposes of the principal course of study (the Bachelor of IT at Deakin). When the applicant ceased to be enrolled in the Diploma of Computing at MIBT and enrolled in cookery courses in the VET sector, he ceased to be an eligible higher degree student because the cookery courses were not before and for the purposes of the principal course of study (the Bachelor of IT). When he ceased to satisfy the definition of an eligible higher degree student, the circumstances that enabled him to satisfy cl.573.223(1A) no longer existed.

47.    The submission dated 11 February 2015 also submitted that, when the visa was cancelled, the applicant was enrolled in a Diploma of Management and that a diploma is a pathway to a bachelor degree. She therefore queries whether the visa should have been cancelled in the first place.

48.    The applicant did not provide the Tribunal with evidence to show that, after he ceased to be enrolled in the Diploma of Computing at MIBT, the applicant proposed to undertake another course of study before and for the purposes of the principal course of study (the Bachelor of IT), that he was also enrolled in that course and that the course was provided by the eligible education provider or an education business partner of the eligible education provider.

49.    While the Tribunal accepts, that in some cases, a diploma is a pathway to a bachelor degree, the Tribunal does not accept that a Diploma of Management is a pathway to a Bachelor of IT. On the evidence before it, the Tribunal does not accept the agent’s submission that, at the time of the primary decision, the applicant satisfied the definition of an eligible higher degree student.

50.    Furthermore, the applicant did not provide any evidence to show that he currently meets the definition of an eligible higher degree student.

51.    Accordingly, the Tribunal finds that the applicant is not an eligible higher degree student. He therefore does not satisfy the requirements of cl.573.223(1A) and a circumstance which permitted the grant of the visa no longer exists.

52.    For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

76    Under the heading “Consideration of discretion” the Tribunal weighed the considerations bearing on the exercise of the discretion to cancel Mr Shrestha’s visa under s 116(1)(a) of the Act. In doing so, it made an observation to the effect that Mr Shrestha had obtained his visa by the “streamlined pathway” under cl 573.223(1A) which involved evidentiary requirements that were less stringent than those that would have applied under cl 573.223(2). The Tribunal continued:

57.    The Tribunal is of the view that the onus is on an applicant to understand his responsibilities while holding a visa to enter and remain in Australia. If he was not aware of those responsibilities, he could have informed himself by asking questions of his agent in Nepal. He also could have asked the Department about his responsibilities as a visa holder, either prior to, or after coming to, Australia. He said he did not do so.

77    After referring to considerations of hardship that might befall Mr Shrestha on the cancellation of his visa, the Tribunal, after “considering the circumstances as a whole” concluded that the visa should nonetheless be cancelled.

JUDICIAL REVIEW PROCEEDINGS

78    In their respective judicial review proceedings, it was necessary for the appellants to show that the Tribunal committed a jurisdictional error. As explained in Craig v South Australia (1995) 184 CLR 163 (Craig) (at 179), an administrative tribunal will make a jurisdictional error if it:

. . . falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

79    In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf), McHugh, Gummow and Hayne JJ said of the list in Craig (at [82]):

. . . Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. . . .

80    Mr Shrestha applied for judicial review of the Tribunal’s decision on four grounds, the first three of which are presently relevant:

1.    The Tribunal erred by reasoning that because the applicant no longer satisfied cl 573.111 of the Migration Regulations 1994, a particular fact or circumstances was no longer the case or no longer existed without considering what particular facts or circumstances had permitted the grant of the visa.

2.    The Tribunal erred by finding that the applicant was no longer an eligible higher degree student when in fact at the date of cancellation (22 October 2014), the applicant was an eligible higher degree student because he was enrolled in the Bachelor of IT at Deakin University and therefore remained an eligible higher degree student within the meaning of cl 573.111.

3.    The Tribunal erred in exercising its discretion to cancel under s 116 of the Migration Act 1958 by failing to consider that at the time of cancellation the applicant was enrolled in the Bachelor of IT at Deakin University.

81    In relation to the first ground of review, Mr Shrestha submitted that there was no evidence upon which the Tribunal could be satisfied that, at the time of the visa grant, he subjectively proposed to undertake the Diploma course “before and for the purposes of” the Bachelor Degree course. As he did not so propose, the submission went, enrolment in the Diploma course could not be properly regarded as a circumstance that had permitted the grant of his visa. In rejecting this ground of review, the learned FCC judge held that the Tribunal’s conclusion that Mr Shrestha’s Diploma course was a course of study he proposed to take “before and for the purposes of” his Bachelor Degree course was open to it on the material before it. The learned judge said:

58.    . . . That material included the delegate’s decision and the PRISMS record. It logically follows that the ‘no evidence’ argument advanced by Mr Shrestha in submissions cannot succeed. Further, there was no obligation on the Tribunal to make further inquiries (such as obtaining the original visa application) in circumstances where the diploma course appeared to be related to the bachelor course and Mr Shrestha did not suggest otherwise either before the delegate or before the Tribunal.

82    In relation to the second ground of review, his Honour observed:

61.    Mr Shrestha’s contention appears to involve the following logic:

(a)    if Mr Shrestha did rely on paragraph (c) of clause 573.111, it was not necessary that he do so - satisfaction of paragraphs (a) and (b) would have been, or would now be, adequate;

(b)    therefore, even if the Tribunal was correct to conclude that Mr Shrestha no longer satisfied paragraph (c) of clause 573.111, the Tribunal needed to inquire into whether Mr Shrestha continued to satisfy paragraphs (a) and (b) alone.

83    His Honour held that the logic was faulty because it did not address the terms of s 116(1)(a) of the Act. That provision was “not concerned with whether an applicant might satisfy some definition at any particular time; it is concerned with whether certain necessary historical circumstances continue to exist”. He continued:

63.    In this case, Mr Shrestha ‘fitted’ all of the circumstances in paragraphs (a), (b) and (c) of clause 573.111 in meeting the definition of ‘eligible higher degree student’. It follows that the Tribunal’s finding that Mr Shrestha ceased to satisfy paragraph (c) of clause 573.111, which was a circumstance which existed at the time of the grant of the visa permitting its grant, is a finding that engages the power under s.116(1)(a) of the Migration Act.

84    Mr Shrestha’s contention that the Tribunal erred in exercising the discretion conferred under s 116(1)(a) of the Act was also rejected. His arguments on that topic were advanced differently on this appeal. In the circumstances it is not necessary to summarise the reasons of the learned primary judge for rejecting the third ground of review.

GROUNDS OF APPEAL

85    The grounds of appeal relied upon by Mr Shrestha are expressed in these terms:

The Learned Federal Circuit Court Judge erred by finding that the Tribunal’s decision was not affected by jurisdictional error. The Tribunal’s decision was so affected because:

1.    The Tribunal erred in applying the definition of ‘eligible higher degree student’ (‘EHDS’) in cl 573.111 of the Migration Regulations 1994 (Cth) (Migration Regulations) to the evidence before the Tribunal.

Particulars

a.    At the date of visa cancellation, the Appellant was enrolled in a requisite principal course of study, being a Bachelor of IT at Deakin University.

b.    By reason of that enrolment, at the time of the visa cancellation, the Appellant continued to satisfy the definition of EHDS in cl 573.111, if paragraph (c) of cl 573.111 did not apply.

c.    Satisfaction of paragraph (c) of the definition of EHDS in cl 573.111 was only required if the Appellant proposed to undertake another course of study before and for the purposes of the Bachelor’s Degree at Deakin University.

d.    The Tribunal erred by approaching the definition of EHDS as if paragraph (c) of the definition of EHDS always had to be satisfied for a student to be an EHDS.

2.    Further and alternatively, the Tribunal failed to take into account a relevant consideration.

Particulars

a.    The Tribunal failed to consider whether the Appellant proposed to undertake another course of study before and for the purposes of the Bachelor of IT at Deakin University in circumstances where if he did not so propose, then satisfaction of paragraph (c) of the definition of EHDS in cl 573.111 of the Migration Regulations was not required for him to be an EHDS.

3.    The Tribunal erred, by applying the repealed version of s 116(1)(a), and by directing itself to whether the Appellant remained eligible for the visa, rather than by considering whether a fact or circumstance upon which the visa was granted was no longer the case or no longer existed.

86    The grounds of appeal in matters VID 820 of 2016 (Mr Acharya) and VID 758 of 2016 (Mr Ghimire) are expressed in identical terms, save that the grounds in those matters refer to a Bachelor of Commerce rather than a Bachelor of IT. In each case the grounds are contained in an amended notice of appeal filed with the leave of the Court. The Minister did not oppose the grant of leave.

CONSIDERATION

Issues arising on the appeal

87    The parties’ submissions on the hearing of the appeal focused primarily on the two limbs of Ground 3. The issues raised are:

(1)    whether the Tribunal applied s 116(1)(a) of the Act as in force and applicable at the time of its decision; and

(2)    whether the Tribunal asked itself the wrong question in determining whether the power to cancel the visas under s 116(1)(a) existed.

88    Grounds 1 and 2 go to the question of whether the Tribunal erred in determining that the appellants no longer satisfied the criteria for the grant of a Higher Education Sector (subclass 573) visa, whether at the time of the cancellation decisions or at the time of the Tribunal’s own decisions. As will be seen, the question of whether the appellants satisfied the visa criteria at those times was, at least, relevant to the exercise of the Tribunal’s discretion to affirm the cancellation decisions. Grounds 1 and 2 must therefore be considered irrespective of whether the contentions in Ground 3 are established. It is convenient to determine Ground 3 first.

Ground 3

Amendments to s 116(1)(a)

89    Section 116(1)(a) of the Act was amended by Item 3 of Sch 2 to the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (No 129 of 2014) (Amending Act). The Amending Act also introduced a new s 116(1)(aa). In its amended form, s 116(1) of the Act relevantly provides:

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)    the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

(aa)    the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

90    Item 3 commenced on the day after the Amending Act received Royal Assent (the commencement date): see Item 2 of Sch 2. The Tribunal decisions were made after the commencement date.

91    The transitional provisions affecting the amendment to s 116(1)(a) are set out in Item 22 of Sch 2 to the Amending Act. It relevantly provides:

(1)    The amendments made by items 1 to 17 of this Schedule apply in relation to a visa held on or after the commencement of those items (even if the visa was granted before that commencement).

(2)    If a notification was given under section 119 of the Migration Act 1958 before the commencement of the amendments made by items 3 and 4 of this Schedule, that Act continues to apply in relation to that notification as if those amendments had not been made.

92    The appellants contend that whilst Item 22 expressly provided that the amendment to s 116(1)(a) applied to a visa held on or after the relevant commencement date, it did not expressly provide that the amendment did not apply to a visa that had been cancelled after the commencement date. It followed, in the appellants’ submission, that the transitional provisions did not displace the general effect of Item 22 of Sch 2, namely that the amendment took effect on the commencement date and therefore before the Tribunal’s decisions.

93    The submission should be rejected. The reference in Item 22(1) to a visa being “held on or after” the commencement date is clearly intended to refer to a visa that has not, as at the commencement date, been cancelled. Ergo, the amendment does not apply to a visa that has been cancelled before that date.

94    That construction finds some support in Item 22(2), which clearly provides that the Act as previously in force is to apply to the cancellation of a visa where the cancellation has been foreshadowed in a notice issued pursuant to s 119 of the Act (as was the case here). The construction is also consistent with the principle that an applicant before the Tribunal has a right to have his or her application for review decided by reference to the law in force at the time of the Minister’s decision: Esber v The Commonwealth (1992) 174 CLR 430 at 440 – 441 (Mason CJ, Deane, Toohey and Gaudron JJ). See also Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [60] – [79] (Kenny and Mortimer JJ).

95    The first limb of Ground 3 is not established.

96    The issue raised in the second limb of Ground 3 may be expressed in different ways. The issue ultimately turns on the proper construction of s 116(1)(a). For the reasons given above, the questions of construction are to be answered by reference to s 116(1)(a) as in force immediately prior to the commencement of the Amending Act extracted at [63] above. For the purposes of these appeals, it appears that little, if anything, turns on the difference in wording between the provision as previously in force and the amended provision in any event.

The proper construction of s 116(1)(a)

97    It should first be observed that the identification of a ground for cancelling a visa under s 116(1) of the Act does not mandate the cancellation of the visa. Rather, the existence of a cancellation ground is to be regarded as an essential precondition to the exercise of the Minister’s discretion to cancel. Invariably, the same facts and circumstances informing the question of whether a ground for cancellation exists will also be relevant (and in some cases critical) on the Minister’s determination as to whether or not the visa should be cancelled. In all cases involving the application of s 116(1)(a), there nonetheless remains a discretion not to cancel. A decision not to cancel a visa may be made even in circumstances where the criteria for the grant of the visa are not satisfied at the time of the decision.

98    In Zhang v Minister for Immigration and Multicultural Affairs [1997] FCA 1177 a single Judge of this Court made orders declaring that the cancellation of a visa by a delegate of the Minister purportedly under s 116(1)(a) had not been effected lawfully. An appeal by the Minister was dismissed by the Full Court: Minister for Immigration and Multicultural Affairs v Zhang (1999) 84 FCR 258 (Zhang). Zhang appears to be the only decision of the Full Court of this Court concerning the proper construction of s 116(1)(a) of the Act.

99    Mr Zhang had been granted a visa for a temporary visit for business purposes. It was a criterion for the grant of the visa that the Minister be satisfied that the expressed intention of the visa applicant to only visit Australia was genuine. Upon his arrival in Australia, Mr Zhang was interviewed by a delegate of the Minister. The delegate was not satisfied that Mr Zhang’s stated intention to only visit Australia was genuine. The delegate purported to cancel Mr Zhang’s visa under s 116(1)(a) of the Act. The primary judge determined that the power to cancel Mr Zhang’s visa had not been enlivened in the circumstances. The Minister appealed to the Full Court. French and North JJ summarised the parties’ contentions on the appeal at [48] – [50] as follows:

48    The primary question in the appeal is the application and construction of the condition for the exercise of the cancellation power in s 116 which requires that: ‘the Minister ... is satisfied that ... any circumstances which permitted the grant of the visa no longer exist.’

49    The Minister submitted that the learned primary judge failed to take into account one of the circumstances relevant to the grant of a business visa. That circumstance was said to be the state of satisfaction of the Minister or his delegate that the expressed intention of the applicant only to visit Australia is genuine (reg 456.221(2)(b)). If at any stage that state of satisfaction abates or a Minister or his delegate form the view that the visit is no longer genuine then the belief in its genuineness is a circumstance that no longer exists.

50    Counsel for Zhang pointed out that ministerial satisfaction is a condition governing all criteria for the grant of any class of visa under s 65. If the state of ministerial satisfaction were a ‘circumstance’ for the purpose of s 116(1)(a) then that section would confer a general power to reconsider the grant of visas.

100    In rejecting the Minister’s submission, their Honours said (at [53] – [55]), of the words in s 116(1)(a):

53.    . . . Context, on occasion, may permit the inclusion of a state of mind in a statutory classification of ‘circumstance’ but such a usage is not in accordance with ordinary concepts of circumstance . . .

54    The ministerial satisfaction which grounds the power to cancel a visa under s 116(1)(a) is satisfaction about the non-existence of ‘any circumstance which permitted the grant of visa’. The circumstance is the subject of the ministerial reflection. It does not as a matter of ordinary construction extend to his own state of mind. The exercise of this important power affecting the position of individuals and possibly their liberty is not to depend upon ministerial satisfaction about ministerial satisfaction. The relevant circumstance which permitted the grant of the visa under reg 456.221(1)(b) is that the expressed intention of Zhang only to visit Australia was genuine. If it were the case that the expressed intention was never genuine, that was a circumstance unchanged by the mere passage of time or the fact of a stated disbelief in the minds of the Minister or the objective discovery of its falsity.

55    The basis therefore, upon which the Minister’s delegate purported to cancel the visa was not made out. Assuming the falsity of the statements made in obtaining the visa in the first place, they remained false. The condition necessary for the invocation of s 116(1)(a) was not satisfied. There was no demonstrated circumstance permitting the grant of the visa which no longer existed.

101    The Minister had contended that the primary judge should nonetheless have declined relief in the exercise of his discretion because there existed an alternative statutory basis upon which Mr Zhang’s visa could be cancelled. The primary judge had determined that the alternative basis for cancellation had not been raised before the Tribunal and to decline relief would be to sit in the seat of the administrative decision-maker for the purpose of exercising an alternative power: Zhang at [45]. As it could not be said that the only decision legally open to the Minister’s delegate was the cancellation of Mr Zhang’s visa, the errors of law identified by the primary judge could not be regarded as immaterial and relief in the circumstances should not be declined. The Full Court determined there to be no error affecting the exercise by the primary judge of his discretion to grant relief: Zhang at [58].

102    Consistent with what was said in Zhang, s 116(1)(a) does not direct attention to the Minister’s subjective state of satisfaction about whether the visa holder would fulfil the criteria for the grant of the visa at the time of the cancellation decision. Zhang otherwise has little bearing on the matters to be decided in the present appeals.

103    As the Minister on these appeals correctly stated in written submissions (and as the appellants correctly acknowledged), while the “circumstances” which permitted the grant of the visa will often be informed or shaped by the prescribed criteria, “the factual circumstances that prevailed at the time of the grant are distinct from the visa criteria themselves”. That construction gives the phrase “which permitted the grant of the visa” in s 116(1)(a) meaningful work to do. A circumstance will permit the grant of a visa if it enables the visa applicant to fulfil the applicable statutory conditions for the grant, including by satisfying statutory definitions such as, in the present case, the EHDS definition.

104    For the purposes of determining whether the ground for cancellation of a visa under s 116(1)(a) exists, the Minister is not to embark upon a reapplication of the visa criteria to the visa holder as at the date of the cancellation decision. Rather, the statute requires the Minister firstly to identify a particular factual circumstance that enabled the visa holder to fulfil the visa criteria at the time of the visa grant, and secondly to determine that the particular factual circumstance no longer exists. That, without more, is sufficient to enliven the discretionary power to cancel. The power will be enlivened even if the visa holder satisfies (and even has continued, without interruption, to satisfy) the criteria for the grant of the visa at the time of the cancellation decision, notwithstanding the change in his or her original factual circumstance. The changed factual circumstance may be one affecting the visa holder’s state of mind but may not, in accordance with what was said in Zhang, be one affecting the Minister’s subjective satisfaction as to whether or not the criteria for the grant of the visa exists.

105    The continued fulfilment (or not) of the criteria for the visa may of course weigh heavily in the exercise of the Minister’s discretion as to whether or not the visa should be cancelled. It is important in all cases, however, to delineate between those considerations that are relevant to the existence of the discretionary power and those considerations that are relevant to its exercise.

The Tribunal’s error

106    There may be instances in which the reasons of an administrative decision-maker do not clearly delineate (whether by words or structure) between discrete aspects of a decision-maker’s mental processes. In such cases, a particular part of the reasons may not be fairly read as being confined to one particular aspect of the decision-maker’s task or another.

107    But that is not this case. The Tribunal’s mental processes in identifying the existence of a ground for cancellation are clearly those set out in the Reasons under the heading “Does the ground for cancellation exist?” The question of whether the Tribunal erred in determining that discrete issue may be answered primarily by reference to that part of the Reasons. That part of the Reasons is, of course, to be read in the context of the Tribunal’s decision as a whole and having regard to the cautionary principle that the reasons of an administrative decision-maker are not to be scrutinised with an eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

108    In support of his visa application, Mr Shrestha demonstrated that he was in fact enrolled in a Diploma course. The Tribunal found that, for the purposes of paragraph (c) of the EHDS definition, the Diploma was a course of study that Mr Shrestha proposed to study “before and for the purposes of” the Bachelor Degree course (Reasons [46]). For the reasons given below, the Tribunal’s factual findings in that regard are not found to be affected by jurisdictional error. In the circumstances, it was, at the time of the visa grant, necessary for Mr Shrestha to satisfy paragraph (c) of the EHDS definition and the opening words to cl 573.223(1A), which he did. The relevant circumstance permitting the grant of the visa was, therefore, his enrolment in the Diploma course. It was that particular circumstance that enabled Mr Shrestha to satisfy a part of the EHDS definition that was, at the time, applicable to him and that thereby “permitted” the grant of the visa for the purposes of s 116(1)(a). At the time of the cancellation decision, that particular circumstance - his enrolment in the Diploma - no longer existed and the power to cancel the visa was therefore enlivened. The enlivening of the power did not turn on the question of whether or not Mr Shrestha could by some other means satisfy the EHDS definition or otherwise satisfy the visa criteria at the time of the cancellation decision.

109    On a fair reading of the Reasons as a whole, and particularly in light of the background I have described, I am satisfied that the Tribunal proceeded on the basis that the power to cancel Mr Shrestha’s visa turned upon whether or not he satisfied the EHDS definition and perhaps to a lesser extent, the criteria under cl 573.223(1A). In that part of the Reasons concerning the existence of the cancellation power, the Tribunal wrongly pre-occupied itself with the question of whether Mr Shrestha currently fulfilled the EHDS definition and cl 573.223(1A). That question was clearly relevant to the exercise of the discretionary power to cancel, but not relevant to its existence.

110    The Tribunal asked itself the wrong question because, in the circumstances I have described, the power to cancel the visa would be enlivened irrespective of whether Mr Shrestha continued to satisfy alternate parts of the EHDS definition or otherwise satisfied alternate visa criteria. It was sufficient that the circumstance of Mr Shrestha’s enrolment in the Diploma course had ceased to exist. The Tribunal assumed the test for identifying a cancellation ground to be more onerous than that for which s 116(1)(a) provides.

111    I have not overlooked that the Tribunal ultimately found the erroneous test to have been satisfied in any event. The consequence of that finding bears upon the outcome of these appeals in the manner discussed [121] to [126] below. For present purposes, it is sufficient to identify that the Tribunal misapprehended the statute and asked itself the wrong question in applying s 116(1)(a) of the Act. Accordingly, the second limb of Ground 3 is made out.

Grounds 1 and 2

112    In a sense, these two grounds complain that the Tribunal answered the wrong question wrongly. The question of whether the appellants satisfied the EHDS definition and fell within cl 573.223(1A) is nonetheless relevant to the exercise of the discretion under s 116(1)(a). They therefore bear on the outcome of the appeals and should be decided in that context.

113    As Counsel for the appellants correctly submitted, paragraph (c) of the EHDS definition only applied if Mr Shrestha subjectively proposed to undertake another course of study before and for the purposes of his Bachelor Degree course. It is submitted that the Tribunal made no finding to the effect that Mr Shrestha subjectively proposed to undertake a course bearing that character. The Tribunal erred, it was submitted, by proceeding on the basis that paragraph (c) of the EHDS definition must be satisfied in all cases in order for a student to fall within the definition.

114    I accept the construction of paragraph (c) of the EHDS definition advanced by the appellants. The requirement to be enrolled in another course of study only arises where the visa applicant in fact proposes to embark on another course and the other course is in fact proposed to be undertaken before and for the purposes of the principal course.

115    However, as I have already observed, the Tribunal made a finding to the effect that the Diploma originally enrolled in by Mr Shrestha was a course “before and for the purposes of” the Bachelor Degree. Read fairly, the Tribunal’s finding ought to be read as encompassing a finding that the Diploma course was, at the time of the visa grant, a course that Mr Shrestha subjectively proposed to undertake before and for the purposes of the Bachelor Degree course in which he was also enrolled. The FCC judge held that such a finding was open to the Tribunal to make, having regard to the content of Mr Shrestha’s visa application and his own evidence before the Tribunal. No error is disclosed in that reasoning. Ground 1 is not established insofar as it concerns the applicability of paragraph (c) of the EHDS definition to Mr Shrestha at the time of the visa grant.

116    The Tribunal further held that Mr Shrestha did not provide the Tribunal with evidence to show that, after he ceased to be enrolled in the Diploma course, he proposed to undertake another course of study before and for the purposes of the Bachelor Degree course. Paragraph [48] of the Reasons proceeds upon an assumption that in order for Mr Shrestha to satisfy the EHDS definition, it would be necessary to demonstrate two things: that he proposed to undertake another course of study before and for the purposes of his principal course, and that he was enrolled in that other course of study. Mr Shrestha submits that there was no evidence upon which the Tribunal could find that he in fact proposed to undertake any such course at the time of the cancellation decision. Accordingly, the submission goes, it was not open for the Tribunal to find that paragraph (c) of the EHDS definition applied at all.

117    The submission should be rejected.

118    The Tribunal proceeded on the factual basis that Mr Shrestha had previously enrolled in a package of courses, such that he could not in fact commence studies in the Bachelor Degree course without first completing the prerequisite Diploma course. It is implicit in the Tribunal’s reasons that Mr Shrestha did not subjectively desire the cancellation of his enrolment in the Diploma course. That was enough to fulfil the subjective component of paragraph (c) of the EHDS definition.

119    If I am wrong in identifying in the Reasons a finding that Mr Shrestha subjectively proposed to undertake the Diploma course at the time of the cancellation decision, I do not consider that particular error would bear materially on the Tribunal’s decision. The Tribunal found (correctly) that Mr Shrestha’s enrolment in the Bachelor Degree course had been cancelled and that he could not otherwise show that he satisfied the EHDS definition. The only conclusion open to the Tribunal to draw on those facts was that Mr Shrestha did not and could not satisfy the definition. The cancellation of enrolment in the Bachelor Degree course was enough.

120    Grounds 1 and 2 are rejected.

RELIEF

121    The error I have identified is jurisdictional in the sense described by the High Court in Yusuf. The Tribunal misconstrued the statutory precondition to the exercise of the discretionary power conferred under s 116(1)(a) of the Act.

122    The appellants seek orders setting aside the orders of the FCC and, in lieu thereof, that writs of certiorari be issued quashing the Tribunal’s decisions and that writs of mandamus be issued remitting the matter to the Tribunal and requiring it to determine the three review applications according to law.

123    Five matters should be emphasised about the context in which the Tribunal’s error was made:

(1)    The Tribunal fixed upon a test for the existence of the power that was higher than that required by the statute. On that higher and erroneous test, it nonetheless found the cancellation power to have been enlivened.

(2)    Had the Tribunal applied the correct test, the only conclusion open to it on the law and the facts in any event was that the power under s 116(1)(a) was enlivened.

(3)    The question of whether Mr Shrestha fell within the EHDS definition or satisfied cl 573.223(1A) at the time of the cancellation decision was not relevant in determining whether the power to cancel the visa was enlivened. However, that question was clearly relevant to the exercise of the Tribunal’s discretion as to whether or not to affirm the cancellation decision. His non-compliance with the visa criteria was a consideration in respect of which the Tribunal was entitled to afford (and did in fact afford) significant weight.

(4)    On the facts as found by the Tribunal, the only conclusion available to be drawn was that Mr Shrestha did not satisfy the EHDS definition at the time of the cancellation decision.

(5)    In exercising its direction to cancel the visa, the Tribunal expressly took into account “the circumstances as a whole”. Read fairly, the Tribunal should be understood as having taken into account, at the discretion stage of its reasoning, all of the findings it had made concerning Mr Shrestha’s failure to meet the criteria for the grant of the visa at the time of the Tribunal’s own decision.

124    In House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112 (House) the Full Court, having found jurisdictional error committed by an administrative tribunal, stated that the grant of relief ought not necessarily follow. Gilmore J said (at [133]):

Where, as in this case, there is demonstrated jurisdictional error on the part of the Tribunal and which is conceded by the respondent, it is sufficient, in order to attract relief setting aside the Tribunal’s decision, that had the error not occurred the outcome could or might be different: Stead v State Government Insurance Commission (1986) 161 CLR 141. Being deprived of the mere possibility of a successful outcome is enough to warrant a remedial order: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [3] — [4]; per Gaudron and Gummow JJ at [80]; McHugh J at [122]; per Kirby J at [131]; per Callinan J at [211]. . . .

See also Greenwood J at [31] and Logan J at [174].

125    The learned FCC judge in each instance failed to identify the jurisdictional error made out in Ground 1 of these appeals. The learned judge in each instance did not turn to consider whether the discretionary remedies available on an application for judicial review ought be granted in the circumstances of the identified error. This Court, in the exercise of its appellate jurisdiction, may refuse to grant relief on an appeal if the grant of relief would be futile.

126    Applying the test in House, and having regard to critical factors I have identified above, I am not satisfied that the outcome of the Tribunal’s review function could or might have been any different had the error identified in Ground 1 not been made. In short, the Tribunal arrived at the same conclusion on the application of an incorrect test as it was bound to arrive at on the application of the correct test. It was bound to conclude on the found facts and the law that the discretion to cancel Mr Shrestha’s visa was enlivened. As to the exercise of the discretion, the Tribunal weighed in the balance all of the facts and circumstances to which it had referred earlier in its Reasons. It afforded considerable weight to the circumstance that Mr Shrestha no longer satisfied the EHDS definition and cl 573.223(1A), as it was entitled to do at that stage of its review function. It cannot be said that there is any possibility that the Tribunal would have exercised its discretion any differently than it did, had it not erred in the manner I have identified. It would not have been open to the FCC judge in each instance to have determined otherwise.

127    Everything I have said in relation to the appeal commenced by Mr Shrestha applies equally to the appeals commenced by Mr Acharya and Mr Ghimire.

128    The appeals should be dismissed.

129    The appellants did not oppose an order that the costs of the appeals should follow the event. I will so order.

Associate:

Dated:    27 April 2017